Mathews v. Lumpkin

Filing 7

MEMORANDUM OPINION AND ORDER - Because his claims have no merit, Mathews' Petition lacks an arguable basis in law and is subject to dismissal for that reason. ORDERED that Mike Naoyuki Mathews' 1 Petition for a Writ of Habeas Corpus By a Person in State Custody is DENIED. 2. A certificate of appealability is DENIED. (Signed by Judge Sim Lake) Parties notified. (sra4)

United States District Court
Southern District of Texas

ENTERED
September 25, 2024

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MIKE NAOYUKI MATHEWS
a/k/a Mike Navuki Mathews
TDCJ #00655381,

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Petitioner,

v.
BOBBY LUMPKIN, Director,
Texas Department of Criminal
Justice
Correctional
Institutions Division,
Respondent.

Nathan Ochsner, Clerk

CIVIL ACTION NO. H-24-1755

MEMORANDUM OPINION AND ORDER
The petitioner, Mike Naoyuki Mathews a/k/a Mike Navuki Mathews
{TDCJ #00655381), is an inmate incarcerated at the Wynne Unit of
the

Texas

Department

of

Criminal

Institutions Division ("TDCJ").

Justice

Correctional

Mathews has filed a Petition for

a Writ of Habeas Corpus By a Person in State Custody ("Petition")
{Docket Entry No. 1), along wi

an Original Writ of Habeas Corpus

Memorandum of Law with Brief in Support, Title 28 U.S.C. § 2254 By
a Person in State Custody

("Memorandum of Law")

{Docket Entry

No. 1-1) and exhibits (Docket Entry No. 1-2), challenging the due
process procedures attendant to an adverse parole decision.

After

reviewing the pleadings under Rule 4 of the Rules Governing Section
2254

Cases

in

the

United

States

District

Courts,

the

court

concludes that this case should be di

ssed for the reasons

explained below.
I.

Background

In 1993 Mathews was convicted of murder in Cause No. 43,164 in
ct Court of Bell County, Texas, which

the 27th Judicial Dis

sentenced him to 50 years in prison. 1
the validity of

Mathews does not challenge

his underlying conviction.

Instead, Mathews

challenges a decision made by the Texas Board of Pardons and
Paroles

("Parole Board")

when he was incarcerated at the Wynne

Unit, which resulted in the denial of his early release on parole.
According to exhibits provided by Mathews, the Parole Board
denied him early re

se on parole on February 2, 2023, for the

following reason:
2D

The record indicates the instant offense has
elements
of
brutality,
violence,
assaultive
behavior, or conscious se
ion of victim's
vulnerability indicating a cons ous disregard for
the lives, safety, or property of others, such that
the offender poses a continuing threat to public
safety. 2

Mathews' next parole review is scheduled for February of 2026.3
Petition, Docket Entry No. 1, p. 2; see also Inmate Info.
Search, Texas Department of Criminal Jus
, https://inmate.tdcj.
texas.gov/InmateSearch/viewDetail.action?sid=OS066429 (last visited
Sept. 23, 2024) .
1

Notice of Parole Panel Decision, Exhibit A to
Docket Entry No. 1-2, p. 1.
2

3

Id.
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tion,

On October 5, 2023, Mathews filed a state habeas application
challenging the parole decision. 4

On January 31, 2024, the Texas

Court of Criminal Appeals found that Mathews did not have a liberty
interest in parole that is protected by due process, and the court
denied his application. 5
In his Petition Mathews makes two main arguments.

First,

Mathews asserts that the TDCJ-issued "Individual Treatment Plan"
"creates a liberty interest in the proceeding to be placed in a
rehabilitative program that is contingent for the Petitioner's
conditional liberty. " 6

He claims that not being permitted to

complete the "Individual Treatment
considered for parole. 7
process. 8

Plan"

keeps him from being

Mathews asserts that this violates due

Second, Mathews asserts that his due process rights were

violated because the parole members who made his parole decision
were

not

qualified

to

do so and

that a finding of

dangerousness" is based on "junk science. " 9

"future

He describes his

"diagnosed criminal behavior" as a "sickness," and asserts that the
4

Petition, Docket Entry No. 1, p. 4.

at 4; Findings of Fact and Conclusions of Law, Exhibit C
to Petition, Docket Entry No. 1-2, p. 3.
5

Memorandum of Law, Docket Entry No. 1-1, pp. 3, 11; see also
Petition, Docket Entry No. 1, pp. 6-7.
6

Memorandum of Law, Docket Entry No. 1-1, pp. 3-4.
8

See

at 4.

9

See id. at 13; see also Petition, Docket Entry No. 1, p. 6.
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respondent's refusal to treat his "sickness" violates the Eighth
Amendment.10
II.
A.

Discussion

Claim One
Mathews asserts that the Individualized Treatment Plan creates

a liberty interest in having an inmate complete his rehabilitation.
He

argues

that

his

inability

to

complete the

Individualized

Treatment Plan, and thus be considered for parole, violates his
constitutional rights.11
There are two ways in which a Texas inmate becomes eligible
for early re

se from imprisonment.

The first is by "parole" and

the second is by "mandatory supervision" release.

"'Parole' means

the discretionary and conditional release of an eligible inmate
sentenced to the institutional division so that the inmate may
serve the remainder of the inmate's sentence under the supe
of the pardons and paroles division."
"'Mandatory
inmate

supervision'

means

sion

Tex. Gov't Code§ 508.001(6).

the

release

of

an

eligible

so that the inmate may serve the remainder of the

inmate's sentence not on parole but under the supervision of the
pardons and paroles division."

Id. § 508.001(5).

Whi

parole is

wholly discretionary, an inmate's release to mandatory supervision
is required,

subject to certain exceptions,

when the

10

Memorandum of Law, Docket Entry No. 1-1, p. 4.

11

See id. at 4 .
-4-

"actual

calendar time the inmate has served plus any accrued good conduct
time equals the term to which the inmate was sentenced."

Id. at

§ 508.147(a); Jackson v. Johnson, 475 F.3d 261, 263 n.1 (5th Cir.
2007).
Mathews is not eligible for mandatory supervision because he
has

a

felony

conviction

for

See

murder.

Tex.

Gov't

Code

§ 508 .149(a)(2) (excluding felons convicted of first- or second­
Thus,

degree murder from eligibility for mandatory supervision).
this

case

only

concerns

Mathews'

claim

that

he

was

denied

discretionary parole without due process.
Prison inmates are entitled to protection under the Due
Process Clause found

the Fourteenth Amendment only when an

official infringes a constitutionally protected liberty interest.
Sandin v. Conner, 115 S. Ct. 2293, 2300 (1995) (citing Board of
Pardons v. Allen, 107 S. Ct. 2415, 2418 (1987)). The United States
Supreme Court has recognized that the states have no duty to
establish a parole system and that there is no constitutional right
to be released on parole before the expiration of a valid sentence.
See Allen, 107 S. Ct. at 2421 n.10 (expl

ning that "statutes or

regulations that provide that a parole board
inmate

on

interest");

parole

do

Greenholtz

not

give

v.

rise

Inmates

to
of

a

'may' release an
protected

Nebraska

liberty

Penal

and

Correctional Complex, 99 S. Ct. 2100, 2105 (1979) (holding that a
statute that "provides no more than a mere hope that the benefit
will

be obtained

is

not protected by due process").
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Similarly, the Fifth Circuit has repeatedly recognized that the
Texas parole statutes create no constitutional right to release on
parole because they create no expectancy of early release.

See

Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir. 1981) (finding
that Texas parole statute does not create a protectable expectancy
of release, but rather creates nothing more than a hope of parole);
see also Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Orellana
v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995); Gilbertson v. Texas Board
of Pardons and Paroles, 993 F.2d 74, 75 (5th Cir. 1993); Creel v.
Keene, 928 F.2d 707, 712 (5th Cir. 1991). Thus, it is settled that
Texas inmates "have no protected liberty interest in parole.
Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).
Absent a protected liberty interest in parole, Mathews cannot
show that he was denied parole in violation of the Due Process
Clause.

Nor does Mathews have a protected liberty interest in

partic

ing in an "Individual Treatment

rehabilitation program.

Plan"

or any other

See, e.g., Moody v. Daggett, 97 S. Ct.

274, 279 n.9 (1976); Johnson v. Wainwright, Civil Action No. 2:19CV-341,

2020

WL

4365546,

at

*3

(S.D.

Tex.

July

30,

2020)

(dismissing petitioner's claim that defendants were denying him
access to an Individual Treatment Program because, even if state
law

requires

petitioner

access

had

rehabilitation

no
more

to an

Individual

Treatment

liberty

interest

broadly);

Smith

v.

in

that

Davis ,.

Program,
program
Civil

the
or

Action

No. 2:17-CV-0013, 2017 WL 1857442, at *3 1N.D. Tex. Mar. 28, 2017)
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("Absent a protected liberty interest in being paroled, petitioner
cannot show he was denied parole in violation of the Due Process
Petitioner's argument that he has some how 'earned the

Clause.

privilege of parole' under his

Individual Treatment Plan and

therefore, presumably, has some form of protected liberty interest
in

being

release[d]

to

parole,

is

unsupported

by

case

law

."), R&R adopted by 2017 WL 1857240 (N.D. Tex. May 5, 2017).
Because Mathews has no protected liberty interest in parole - or in
a rehabilitation plan - he is not entitled to habeas corpus relief
on this issue.
B.

Claim Two
In

his

second

claim

Mathews

asserts

the

Parole

Board's

consideration of his crime of conviction in making its decision
whether to
rights. 12

grant

or

deny

parole violates his

This argument fails.

constitutional

"Parole review under Texas law is

committed to the discretion of the parole board and a Texas inmate
has

no

constitutionally

protected

expectancy

of

parole;

consequently, due process complaints concerning parole procedures
or

eligibility

concerns

by
II

Texas

inmates

do

not

raise

constitutional

Gross v. Quarterman, Civil Action No. H-04-136,

2007 WL 4411755, at *10 (S.D. Tex. Dec. 17, 2007) (citing Madison
v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) and Orellana, 65 F.3d
at 32).
12

Moreover,

"[r] ecognizing the choices presented by an

See id. at 13.
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administrative decision to grant parole release,

courts have

consistently held that there is simply no denial of an inmate's
cons

ional rights by reason of the parole board's consideration

of the nature and circumstances of the offense."

Id. (citing Page v.

United States Parole Cornrn'n, 651 F.2d 1083, 1085-86 (5th Cir. 1981),
Jackson v. Reese, 608 F.2d 159, 160 (5th

. 1979), and Bistram v.

United States Parole Cornrn'n, 535 F.2d 329, 330 (5th Cir. 1976)).
Federal

courts

are

authorized

to

dismiss

habeas

corpus

petitions without ordering a response where it plainly appears that
the

i ti oner is not entitled to rel

f.

28 u.s.c. § 2243;

Rule 4, Rules Governing Section 2254 Cases in the United States
District Courts.

Because his claims have no merit,

Mathews'

Petition lacks an arguable basis in law and is subject to dismissal
for that reason. See McDonald v. Johnson, 139 F.3d 1056, 1060 (5th
Cir. 1998). Accordingly, Mathews' Pet

on will be denied and this

case will be dismissed.
III.

Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases requires a
dist

court to issue or deny a certificate of appealability when

entering a final order that is adverse to the petitioner.
ce

ficate of appeal

lity will not issue unless the

makes "a substantial showing of the denial of a cons
right," 28 U.S.C. § 2253(c)(2), which requires a peti
demonstrate

"that

reasonable

A

ioner
ional
oner to

jurists would find

the district

court's assessment of the constitutional claims

debatable or

-8-

wrong."

Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004} (quoting

Slack v. McDaniel,

120 S. Ct.

1595,

1604

controlling standard this requires a

(2000}}.

Under the

itioner to show "that

reasonable jurists could debate whether (or, for that matter, agree
that} the petition should have been resolved in a different manner
or

that

the

issues

presented

were

encouragement to proceed further.'"
S. Ct. 1029,

1039

(2003}.

'adequate

to

deserve

Miller-El v. Cockrell, 123

Where denial of relief is based on

procedural grounds the petitioner must show not only that "jurists
of reason would find it debatable whether the petition states a
valid claim of the den

of a constitutional right," but also that

they "would find it debatable whether the district court was
correct in its procedural ruling."

Slack, 120 S. Ct. at 1604.

A district court may deny a certi

cate of appealability,

ring further briefing or argument.

sua sponte, without

Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000}.

Because

the issues presented concern a clearly settled area of law, the
court concludes that jurists of reason would not debate whether
Mathews' Petition states a valid claim for relief or should be
resolved in a different manner.

Accordingly, a certi

appealability will not issue.
IV.

Conclusion and Order

Based on the foregoing, the court ORDERS as follows:

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cate of

1.

Mike Naoyuki Mathews' Petition for a Writ of Habeas
Corpus By a Person in State Custody (Docket Entry
No. 1) is DENIED.

2.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this Memorandum Opinion and
Order to the petitioner.
SIGNED at Houston, Texas, on this 24th day of September, 2024.

SENIOR UNITED STATES DISTRICT JUDGE

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